NY State Senate Bill 2009-S4068

Senate Bill S4068

2009-2010 Legislative Session

Provides that a member shall forfeit his or her retirement rights and benefits if he or she is convicted of or pleads to certain crimes related to public employment

download bill text pdf

Archive: Last Bill Status - In Senate Committee Civil Service And Pensions Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to civil service and pensions
Apr 08, 2009	referred to civil service and pensions

co-Sponsors

2009-S4068 (ACTIVE) - Details

Current Committee:: Senate Civil Service And Pensions
Law Section:: Retirement and Social Security Law
Laws Affected:: Add Art 3-B §§156 - 159, R & SS L
Versions Introduced in 2011-2012 Legislative Session:: S1075

2009-S4068 (ACTIVE) - Summary

Provides that a member shall forfeit his or her retirement rights and benefits if he or she is convicted of or pleads to certain crimes related to public employment.

2009-S4068 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4068

 TITLE OF BILL :

An act to amend the retirement and social security law, in relation to
forfeiture of pension rights or retirement benefits upon conviction of
certain crimes related to public employment


 PURPOSE :

To establish a procedure whereby public misconduct by a public
employee may disqualify him or her from all or part of their pension
benefits.

 SUMMARY OF PROVISIONS :

Section one of the bill amends the Retirement and Social Security Law
(R&SSL) by adding a new Article 3-B entitled the Pension Forfeiture
for Public Misconduct Act.

A new § 156 of R&SSL establishes the title of the act.

A new §157 delineates the definitions used in Article 3-B.

A new § 158 establishes the procedures to be followed in order for a

public employee convicted of misconduct to forfeit their pension.

A new § 159 allows for a miscellaneous provision.

Section two of the bill is the enacting provision.

 JUSTIFICATION :

New York State has no policy mandating the forfeiture of pension
benefits by a public official who has been convicted of a crime. No
matter how serious the offense or how grossly an official has abused
his or her public office, the current laws which govern pension plans
for state employees, as well as municipal employees outside New York
City, make no provision for forfeiture. A state or local government
employee who otherwise meets the age and length of service
requirements for a pension contained in New York's R&SSL is entitled
to collect pension benefits, at public expense, even ifhe or she has
betrayed the public trust and been convicted of a crime related to the
betrayal of that trust.

Here are just a few examples of corrupt public officials who are
receiving or continue to be eligible for their taxpayer funded
pensions.

* A former mayor of a large upstate city who pleaded guilty to federal
racketeering charges and extorting at least $1.2 million from
contractors doing business with the city during his 16 years in
office.

* Several former highway superintendents who pleaded guilty to federal
corruption charges for defrauding their local governments in
connection with the purchase of materials and equipment.

* At least two supreme court justices convicted of taking bribes for
fixing cases and one former administrative judge for one of the
largest counties in the state convicted of perjury after an
investigation into extortion involving cable television franchises.

* A former superintendent of a major metropolitan area's Sanitation
Department's Bureau of Waste Management who pleaded guilty to three
counts of federal racketeering for accepting over $660,000 in bribes
and payoffs. In addition, he allowed millions of gallons of hazardous
and chemical waste to be dumped in municipal solid waste landfills.

* A former deputy director of the a major metropolitan area's
Department of General Services who pleaded guilty to federal
racketeering charges of extorting over a million dollars from building
owners seeking to lease space to the city and was sentenced to 12
years in prison.

* A former Housing Authority supervisor convicted in a federal bribery
and extortion probe and sentenced to 5 years in prison and a fine of
$55,000.

* The conviction of 23 Housing Authority employees for job-related
crimes.

* A former fiscal administrator for a major metropolitan area's
Department of Health's Maternal, Infant and Reproductive Health
program who embezzled nearly $200,000 from taxpayers through
fraudulent payments to a bogus catering company he created and for
taking kickbacks from contractors.

New York's retirement systems at all levels of government should be
explicitly based on the principle that the faithful and honest
performance of a public employee's official duties is as much a
precondition to eligibility for a pension as fulfilling the existing
statutory age and length of service requirements. In the public
sector, pensions are not merely a form of deferred compensation. They
are a "reward for faithfulness to duty and honesty of performance." A
public servant who, by engaging in serious criminal misconduct, abuses
the power of office and violates the fiduciary duty owed to the public
relinquishes any claim to a pension financed by the tax paying
citizens of this state.

The purpose of a pension forfeiture statute is to withhold public tax
dollars from the employee who has broken faith with the public and
breached in a significant way the fiduciary duty owed to the citizens
of the state.

Five other states -- Pennsylvania, Florida, Georgia, Illinois and
Massachusetts -- have all enacted pension forfeiture statues which
recognize that loyal, honest public service is an essential
prerequisite to pension eligibility. In these five states, criminal
misconduct related to a public employee's official duties operates to
sever the employee's claim to a taxpayer-financed pension.

 LEGISLATIVE HISTORY :

2005-06: Senate Civil Service & Pensions Cmte./Assembly Governmental
Employees Cmte.
2007-08: Senate Civil Service & Pensions Cmte.

 FISCAL IMPLICATIONS :

Fiscally neutral or potential decrease in the fiscal obligations of
the retirement systems.

 EFFECTIVE DATE :
This act shall take effect immediately and shall apply to all
retirement system members who join on or after the day it shall have
become law.

2009-S4068 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4068

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 8, 2009
                               ___________

Introduced  by  Sens.  FLANAGAN,  LANZA, LITTLE, MORAHAN, WINNER -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee on Civil Service and Pensions

AN  ACT  to amend the retirement and social security law, in relation to
  forfeiture of pension rights or retirement benefits upon conviction of
  certain crimes related to public employment

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The retirement and social security law is amended by adding
a new article 3-B to read as follows:
                               ARTICLE 3-B
              PENSION FORFEITURE FOR PUBLIC MISCONDUCT ACT
SECTION 156. SHORT TITLE.
        157. DEFINITIONS.
        158. PENSION FORFEITURE.
        159. MISCELLANEOUS.
  S  156.  SHORT  TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
THE "PENSION FORFEITURE FOR PUBLIC MISCONDUCT ACT".
  S 157. DEFINITIONS. THE FOLLOWING WORDS AND PHRASES, AS USED  IN  THIS
ARTICLE,  SHALL  HAVE THE FOLLOWING MEANINGS, UNLESS A DIFFERENT MEANING
IS PLAINLY REQUIRED BY THE CONTEXT:
  1. "DEFENDANT" SHALL MEAN A PERSON AGAINST WHOM A FORFEITURE ACTION IS
COMMENCED.
  2. "COVERED CRIME" SHALL MEAN ANY OF THE FOLLOWING:
  (A) ANY FELONY OFFENSE SET FORTH IN THE PENAL LAW;
  (B) ANY CRIME DEFINED IN TITLE L OF THE PENAL LAW;
  (C) AN ATTEMPT, CONSPIRACY, OR SOLICITATION OF ANOTHER TO  COMMIT  ANY
FELONY OFFENSE SET FORTH IN THE PENAL LAW;
  (D)  AN  ATTEMPT, CONSPIRACY, OR SOLICITATION OF ANOTHER TO COMMIT ANY
CRIME DEFINED IN TITLE L OF THE PENAL LAW;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03748-02-9

S. 4068                             2

  (E) ANY OTHER CRIME DEFINED BY THE LAWS OF  THIS  STATE,  A  NECESSARY
ELEMENT OF WHICH, AS DETERMINED BY STATUTORY OR COMMON LAW DEFINITION OF
SUCH  CRIME,  INCLUDES  INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE,
FALSE SWEARING, MISREPRESENTATION, FRAUD,  DECEIT,  BRIBERY,  EXTORTION,
MISAPPROPRIATION, THEFT, PROHIBITED ACTION OR FAILURE TO ACT BY A PUBLIC
OFFICER OR EMPLOYEE;
  (F) ANY CRIME DEFINED BY THE LAWS OF THIS STATE FOR WHICH THE VACATING
OR FORFEITURE OF THE PUBLIC OFFICE OR EMPLOYMENT HELD BY SUCH INDIVIDUAL
IS REQUIRED BY LAW;
  (G)  ANY  CRIMINAL  OFFENSE  COMMITTED IN ANY OTHER STATE, DISTRICT OR
TERRITORY OF THE UNITED STATES, WHICH IF COMMITTED  WITHIN  THIS  STATE,
WOULD  CONSTITUTE AN OFFENSE DESIGNATED IN PARAGRAPH (A), (B), (C), (D),
(E), OR (F) OF THIS SUBDIVISION.
  3. "CHIEF ADMINISTRATOR OF THE RETIREMENT SYSTEM" SHALL MEAN THE COMP-
TROLLER OF THE STATE OF NEW YORK WITH RESPECT TO THE NEW YORK STATE  AND
LOCAL  EMPLOYEES'  RETIREMENT  SYSTEM  AND  THE NEW YORK STATE AND LOCAL
POLICE AND FIRE RETIREMENT  SYSTEM  AND  THE  BOARDS  OF  TRUSTEES  WITH
RESPECT  TO THE OTHER PUBLIC RETIREMENT SYSTEMS AND PENSION FUNDS OF THE
STATE AND THE CITY OF NEW YORK.
  4. "MEMBER" SHALL MEAN A MEMBER  OF  THE  NEW  YORK  STATE  AND  LOCAL
EMPLOYEES'  RETIREMENT  SYSTEM,  THE NEW YORK STATE AND LOCAL POLICE AND
FIRE RETIREMENT SYSTEM, THE NEW YORK STATE TEACHERS' RETIREMENT  SYSTEM,
THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE NEW YORK CITY TEACH-
ERS'  RETIREMENT  SYSTEM, THE NEW YORK CITY POLICE PENSION FUND, THE NEW
YORK CITY FIRE DEPARTMENT PENSION FUND AND THE NEW YORK  CITY  BOARD  OF
EDUCATION  RETIREMENT  SYSTEM  WHO  JOINED  SUCH  SYSTEM ON OR AFTER THE
EFFECTIVE DATE OF THIS ARTICLE.
  5. "RETIRED MEMBER" SHALL MEAN A PERSON WHO IS RETIRED FROM AND WHO IS
RECEIVING A RETIREMENT ALLOWANCE FROM A RETIREMENT SYSTEM  AND  WHO  HAD
JOINED SUCH SYSTEM ON OR AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
  6. "RETIREMENT SYSTEM" SHALL MEAN THE NEW YORK STATE AND LOCAL EMPLOY-
EES'  RETIREMENT  SYSTEM,  THE  NEW YORK STATE AND LOCAL POLICE AND FIRE
RETIREMENT SYSTEM, THE NEW YORK STATE TEACHERS' RETIREMENT  SYSTEM,  THE
NEW  YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE NEW YORK CITY TEACHERS'
RETIREMENT SYSTEM, THE NEW YORK CITY POLICE PENSION FUND, THE  NEW  YORK
CITY  FIRE DEPARTMENT PENSION FUND AND THE NEW YORK CITY BOARD OF EDUCA-
TION RETIREMENT SYSTEM.
  7. "DEPENDENT CHILDREN" SHALL INCLUDE:
  (A) ANY CHILD OF AN OFFICER OR EMPLOYEE, WHERE SUCH CHILD IS UNDER AGE
NINETEEN;
  (B) ANY UNMARRIED DEPENDENT CHILD OF AN OFFICER OR  EMPLOYEE,  REGARD-
LESS OF SUCH CHILD'S AGE, WHERE SUCH CHILD IS INCAPABLE OF SELF-SUSTAIN-
ING  EMPLOYMENT BY REASON OF MENTAL OR PHYSICAL DISABILITY AND BECAME SO
INCAPABLE PRIOR TO ATTAINING THE AGE OF NINETEEN; AND
  (C) ANY UNMARRIED CHILD OF AN OFFICER OR EMPLOYEE, WHERE SUCH CHILD IS
AT AN ACCREDITED INSTITUTION OF HIGHER LEARNING AND IS UNDER  AGE  TWEN-
TY-THREE.
  S  158.  PENSION  FORFEITURE.  NOTWITHSTANDING  ANY OTHER PROVISION OF
GENERAL, SPECIAL OR LOCAL LAW, RULE OR REGULATION TO THE CONTRARY:
  1. IN THE CASE OF A MEMBER OR RETIRED  MEMBER  WHO  IS  CONVICTED  OF,
PLEADS  GUILTY TO, PLEADS NOLO CONTENDERE TO, OR PLEADS GUILTY TO PURSU-
ANT TO SUBDIVISION TWO OF SECTION 220.10 OF THE CRIMINAL  PROCEDURE  LAW
ANY COVERED CRIME SET FORTH IN PARAGRAPH (A), (B), (C), (D), (E), OR (F)
OF  SUBDIVISION  TWO OF SECTION ONE HUNDRED FIFTY-SEVEN OF THIS ARTICLE,
THE COMMISSION OF WHICH IS RELATED TO THE PERFORMANCE OF OR  FAILURE  TO
PERFORM SUCH MEMBER OR RETIRED MEMBER'S OFFICIAL DUTIES AND RESPONSIBIL-

S. 4068                             3

ITIES,  AN  ACTION  MAY  BE  COMMENCED  IN SUPREME COURT BY THE DISTRICT
ATTORNEY HAVING JURISDICTION OVER THE OFFENSE, OR BY THE ATTORNEY GENER-
AL IF THE ATTORNEY GENERAL BROUGHT THE UNDERLYING CRIMINAL  CHARGE,  FOR
THE FORFEITURE OF ALL OR A PORTION OF THOSE RIGHTS AND BENEFITS TO WHICH
SUCH  PERSON  IS OR WILL BE ENTITLED AS A MEMBER OR RETIRED MEMBER. SUCH
ACTION SHALL BE COMMENCED WITHIN SIX  MONTHS  OF  SUCH  CONVICTION.  FOR
PURPOSES  OF THIS ARTICLE, A COVERED CRIME IS RELATED TO THE PERFORMANCE
OF OR FAILURE TO PERFORM SUCH MEMBER OR RETIRED MEMBER'S OFFICIAL DUTIES
AND RESPONSIBILITIES IF IT:
  (A) CONSTITUTED A MATERIAL  VIOLATION  OF  SUCH  MEMBER'S  OR  RETIRED
MEMBER'S DUTIES AND RESPONSIBILITIES AS A PUBLIC SERVANT; OR
  (B)  WAS COMMITTED IN THE COURSE OF AN INDIVIDUAL'S PUBLIC EMPLOYMENT;
OR
  (C) INVOLVED THE USE OF PUBLIC PERSONNEL OR RESOURCES; OR
  (D) INVOLVED AN INDIVIDUAL'S MISREPRESENTATION OF HIS  OR  HER  ACTUAL
OFFICIAL POWERS, DUTIES AND RESPONSIBILITIES; OR
  (E)  EVEN THOUGH COMMITTED OUTSIDE THE SCOPE OF SUCH MEMBER'S OFFICIAL
DUTIES OR RESPONSIBILITIES, INVOLVED ACTIONS OR CONDUCT  BY  WHICH  SUCH
MEMBER OR RETIRED MEMBER INDICATED OR CONVEYED THAT HE OR SHE WAS ACTING
WITH  THE  AUTHORITY OF, OR UNDER COLOR OF THE AUTHORITY OF, ANY GOVERN-
MENTAL ENTITY.
  2. WHERE THE ATTORNEY GENERAL, OR THE DISTRICT ATTORNEY OF THE  COUNTY
IN  WHICH THE MEMBER OR RETIRED MEMBER RESIDES IN THIS STATE, FINDS THAT
A MEMBER OR A RETIRED MEMBER HAS BEEN CONVICTED OF A  COVERED  CRIME  AS
DEFINED  IN  PARAGRAPH  (G)  OF  SUBDIVISION  TWO OF SECTION ONE HUNDRED
FIFTY-SEVEN OF THIS ARTICLE, THE COMMISSION OF WHICH IS RELATED  TO  THE
PERFORMANCE  OR  FAILURE  TO  PERFORM  SUCH MEMBER'S OR RETIRED MEMBER'S
OFFICIAL DUTIES AND RESPONSIBILITIES, AN  ACTION  MAY  BE  COMMENCED  IN
SUPREME  COURT  BY  THE ATTORNEY GENERAL, OR BY THE DISTRICT ATTORNEY OF
THE COUNTY IN WHICH THE MEMBER OR RETIRED MEMBER RESIDES IN THIS  STATE,
FOR  THE  FORFEITURE OF ALL OR A PORTION OF THOSE RIGHTS AND BENEFITS TO
WHICH SUCH PERSON IS OR WILL BE ENTITLED AS A MEMBER OR RETIRED  MEMBER.
SUCH ACTION SHALL BE COMMENCED WITHIN ONE YEAR OF SUCH CONVICTION.
  3.  PRIOR  TO COMMENCEMENT OF SUCH ACTION DESCRIBED IN SUBDIVISION ONE
OR TWO OF THIS SECTION, THE DISTRICT ATTORNEY OR THE  ATTORNEY  GENERAL,
AS  THE  CASE MAY BE, SHALL PROVIDE NOTICE TO THE CHIEF ADMINISTRATOR OF
THE DEFENDANT'S RETIREMENT SYSTEM STATING THAT HE OR SHE HAS  REASON  TO
BELIEVE THAT THE PERSON CONVICTED COMMITTED THE COVERED CRIME RELATED TO
HIS  OR  HER OFFICIAL DUTIES AND RESPONSIBILITIES. WITHIN TWENTY DAYS OF
RECEIPT OF SUCH NOTICE,  THE  CHIEF  ADMINISTRATOR  OF  THE  DEFENDANT'S
RETIREMENT SYSTEM SHALL SUBMIT A NOTICE OF APPLICABILITY TO THE DISTRICT
ATTORNEY  OR  THE  ATTORNEY  GENERAL  AS  THE CASE MAY BE. THE NOTICE OF
APPLICABILITY SHALL CONTAIN A STATEMENT SPECIFYING  WHETHER  THE  PERSON
CONVICTED  IS  OR  HAS  BEEN  A MEMBER OR RETIRED MEMBER OF THE NEW YORK
STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, THE  NEW  YORK  STATE  AND
LOCAL  POLICE  AND  FIRE RETIREMENT SYSTEM, THE NEW YORK STATE TEACHERS'
RETIREMENT SYSTEM, THE NEW YORK CITY EMPLOYEES' RETIREMENT  SYSTEM,  THE
NEW  YORK  CITY  TEACHERS'  RETIREMENT  SYSTEM, THE NEW YORK CITY POLICE
PENSION FUND, THE NEW YORK CITY FIRE DEPARTMENT PENSION FUND AND THE NEW
YORK CITY BOARD OF EDUCATION RETIREMENT SYSTEM AND  SHALL  DESCRIBE  THE
RIGHTS  AND BENEFITS TO WHICH SUCH PERSON IS OR WILL BE ENTITLED TO FROM
SUCH PUBLIC RETIREMENT SYSTEM.
  4. NO FORFEITURE ACTION MAY BE COMMENCED BY THE DISTRICT  ATTORNEY  OR
THE ATTORNEY GENERAL UNTIL RECEIPT OF THE NOTICE OF APPLICABILITY AS SET
FORTH  IN  SUBDIVISION  THREE OF THIS SECTION. IN DETERMINING WHETHER TO
SEEK FORFEITURE OF A PORTION, RATHER THAN ALL, OF SUCH RETIREMENT  BENE-

S. 4068                             4

FITS,  THE  DISTRICT ATTORNEY OR THE ATTORNEY GENERAL MAY CONSIDER MITI-
GATING FACTORS INCLUDING, BUT NOT LIMITED TO: THE NATURE AND SERIOUSNESS
OF THE OFFENSE COMMITTED IN RELATION TO THE  AMOUNT  OF  THE  FORFEITURE
PENALTY;  WHETHER  THE DEFENDANT'S CONDUCT IN COMMITTING THE OFFENSE WAS
WILLFUL OR MALICIOUS; WHETHER THE DEFENDANT MADE  ANY  SUBSTANTIAL  GOOD
FAITH  EFFORTS  TO  PREVENT  OR MITIGATE THE HARM CAUSED BY THE OFFENSE;
WHETHER THE DEFENDANT'S PARTICIPATION IN THE  CRIME  WAS  UNDER  DURESS,
COERCION  OR  INDUCED BY OTHERS; THE IMPACT OF THE CRIME ON THE STATE OR
LOCAL GOVERNMENT AND THE NUMBER  OF  YEARS  OF  THE  DEFENDANT'S  PUBLIC
SERVICE PERFORMED WITHOUT CRIMINAL CONDUCT; THE PECUNIARY BENEFIT TO THE
DEFENDANT FROM THE CRIME; AND WHETHER AND TO WHAT EXTENT THE DEFENDANT'S
FAMILY  IS  DEPENDENT UPON THE DEFENDANT'S PRESENT AND FUTURE RETIREMENT
BENEFITS. THE DISTRICT ATTORNEY OR THE  ATTORNEY  GENERAL  MAY  SEEK  AN
ORDER  FROM  THE COURT THAT SOME OR ALL OF THE FORFEITED PENSION BE PAID
FOR THE BENEFIT OF ANY DEPENDENT CHILDREN AS JUSTICE MAY REQUIRE,  AFTER
TAKING  INTO  CONSIDERATION  THE FINANCIAL NEEDS AND RESOURCES AVAILABLE
FOR SUPPORT OF SUCH CHILDREN. FURTHER, IN THE EVENT OF  ANY  FORFEITURE,
SUCH  MEMBER OR RETIRED MEMBER SHALL BE ENTITLED TO A PRO RATA RETURN OF
HIS OR HER CONTRIBUTION PAID INTO THE RELEVANT  RETIREMENT  SYSTEMS,  IN
ANY AMOUNT PROPORTIONATE TO THE AMOUNT OF ANY FORFEITURE, WITHOUT INTER-
EST.
  5.  UPON  MOTION  BY THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL, AS
THE CASE MAY BE, MADE UPON COMMENCEMENT OF OR AT  ANY  TIME  DURING  THE
PENDENCY  OF A FORFEITURE ACTION, PURSUANT TO THE PROCEDURE SET FORTH IN
SUBDIVISION ONE OF SECTION SIX THOUSAND THREE HUNDRED ELEVEN OR  SECTION
SIX THOUSAND THREE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES,
THE  COURT  MAY  ISSUE  A  TEMPORARY  RESTRAINING ORDER OR A PRELIMINARY
INJUNCTION PROHIBITING THE DEFENDANT FROM RECEIVING ANY RIGHTS OR  BENE-
FITS  FROM  THE  APPROPRIATE RETIREMENT SYSTEM. A PRELIMINARY INJUNCTION
MAY BE GRANTED WHERE THE COURT FINDS THAT THERE IS A SUBSTANTIAL  PROBA-
BILITY  THAT  THE  DISTRICT ATTORNEY OR ATTORNEY GENERAL WILL PREVAIL ON
THE ISSUE OF  FORFEITURE.  NO  SHOWING  OF  IRREPARABLE  HARM  SHALL  BE
REQUIRED. THE COURT MAY NOT CONSIDER ON SUCH MOTION ANY ISSUES PRESENTED
TO  THE COURT WHICH HEARD THE CRIMINAL ACTION IN WHICH THE DEFENDANT WAS
CONVICTED OR WHICH  ARISE  OUT  OF  SUCH  CRIMINAL  ACTION  AND  MAY  BE
PRESENTED ON APPEAL.
  6.  ALL  DEFENDANTS  IN  A  FORFEITURE ACTION BROUGHT PURSUANT TO THIS
ARTICLE SHALL HAVE THE RIGHT TO A HEARING.
  7. THE BURDEN OF PROOF SHALL BE UPON  THE  DISTRICT  ATTORNEY  OR  THE
ATTORNEY GENERAL, AS THE CASE MAY BE, TO PROVE BY A PREPONDERANCE OF THE
EVIDENCE THE FACTS NECESSARY TO ESTABLISH A CLAIM OF PENSION FORFEITURE.
  8.  AT  ANY TIME DURING THE PENDENCY OF A FORFEITURE ACTION, THE COURT
MAY DISMISS THE ACTION IF IT FINDS THAT SUCH RELIEF IS WARRANTED BY  THE
EXISTENCE  OF  SOME  COMPELLING  FACTOR,  CONSIDERATION  OR CIRCUMSTANCE
INCLUDING, BUT NOT LIMITED TO, ONE OR MORE OF THE MITIGATING FACTORS SET
FORTH IN SUBDIVISION FOUR OF  THIS  SECTION,  OR  OTHER  INFORMATION  OR
EVIDENCE  WHICH  DEMONSTRATES  THAT  SUCH FORFEITURE WOULD NOT SERVE THE
ENDS OF JUSTICE. THE COURT MAY ORDER THAT SOME OR ALL OF  THE  FORFEITED
PENSION BE PAID FOR THE BENEFIT OF ANY DEPENDENT CHILDREN AS JUSTICE MAY
REQUIRE,  AFTER  TAKING  INTO  CONSIDERATION  THE  FINANCIAL  NEEDS  AND
RESOURCES AVAILABLE FOR SUPPORT OF SUCH CHILDREN.  THE COURT SHALL ISSUE
A WRITTEN DECISION STATING THE BASIS FOR AN  ORDER  ISSUED  PURSUANT  TO
THIS SUBDIVISION.
  9.  UPON  A  FINDING  BY  THE COURT THAT THE DEFENDANT HAS COMMITTED A
COVERED CRIME THAT IS RELATED  TO  THE  PERFORMANCE  OF  OR  FAILURE  TO
PERFORM SUCH DEFENDANT'S OFFICIAL DUTIES AND RESPONSIBILITIES, THE COURT

S. 4068                             5

SHALL  ISSUE  AN  ORDER  TO  THE  APPROPRIATE  RETIREMENT SYSTEM FOR THE
FORFEITURE OR RECOUPMENT OF ALL OR A PORTION OF THE  DEFENDANT'S  RIGHTS
AND  BENEFITS  AS  A MEMBER OR RETIRED MEMBER OF SUCH SYSTEM AND FOR THE
RECOUPMENT  OF  ALL  OR A PORTION OF THE RETIREMENT BENEFITS PAID TO THE
DEFENDANT. IN DETERMINING THE EXTENT OF  THE  FORFEITURE  OR  RECOUPMENT
THAT  IS WARRANTED, THE COURT MAY CONSIDER ONE OR MORE OF THE MITIGATING
FACTORS SET FORTH IN SUBDIVISION FOUR OF THIS SECTION.  ALL  ORDERS  AND
FINDINGS MADE BY THE COURT PURSUANT TO THIS SECTION SHALL BE SERVED UPON
THE CHIEF ADMINISTRATOR OF THE DEFENDANT'S RETIREMENT SYSTEM.
  10. UPON A FINAL DETERMINATION THAT REVERSES OR VACATES THE CONVICTION
OR  CONVICTIONS  OF  A  DESIGNATED  OFFENSE  OR  OFFENSES, THE MEMBER OR
RETIRED MEMBER WHO HAS FORFEITED RETIREMENT RIGHTS AND BENEFITS PURSUANT
TO THIS SECTION  SHALL  HAVE  SUCH  RIGHTS  AND  BENEFITS  RETROACTIVELY
RESTORED  UPON  APPLICATION  TO  THE  COURT  WITH  JURISDICTION OVER THE
FORFEITURE ACTION, REGARDLESS OF  ANY  TEMPORARY  RESTRAINING  ORDER  OR
PRELIMINARY  INJUNCTION WHICH MAY BE OUTSTANDING OR ORDER WHICH MAY HAVE
BEEN ISSUED. SUCH COURT, UPON FINDING THAT SUCH  A  FINAL  DETERMINATION
HAS  OCCURRED,  SHALL ISSUE AN ORDER RETROACTIVELY RESTORING SUCH RIGHTS
AND BENEFITS, TOGETHER WITH SUCH OTHER RELIEF DEEMED APPROPRIATE.
  11. EXCEPT AS OTHERWISE PROVIDED BY THIS ARTICLE, THE  CIVIL  PRACTICE
LAW AND RULES SHALL GOVERN THE PROCEDURE IN ACTIONS COMMENCED UNDER THIS
ARTICLE,  EXCEPT  WHERE  THE  ACTION  IS  REGULATED  BY ANY INCONSISTENT
PROVISIONS HEREIN.
  S 159. MISCELLANEOUS. THE REMEDIES PROVIDED FOR IN  THIS  ARTICLE  ARE
NOT  INTENDED TO SUBSTITUTE FOR, LIMIT OR SUPERSEDE THE LAWFUL AUTHORITY
OF ANY PUBLIC OFFICER, AGENCY OR OTHER PERSON TO ENFORCE ANY OTHER RIGHT
OR REMEDY PROVIDED FOR BY LAW.
  S 2. This act shall take effect immediately.
  FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
  This bill would amend the Retirement  and  Social  Security  Law  with
regard to the forfeiture of the retirement system rights and benefits of
certain  future  members  or retirees of any public retirement system in
New York State.
  If this bill is enacted, insofar as it affects the New York State  and
Local  Employees'  Retirement  System  and  the New York State and Local
Police and Fire Retirement System, it would provide  that  if  a  future
member  or retiree was convicted of any one of certain criminal offenses
relating to his (or her) performance  or  failure  to  perform  official
duties and responsibilities, such member or retiree would forfeit all or
a  portion of his (or her) rights and benefits as a member or retiree of
such System  and  all  or  a  portion  of  retirement  benefits  already
received.  There could be a resulting decrease in the fiscal obligations
of the Systems. The amount of the decrease would be the present value of
all such forfeited benefit payments.
  This estimate, dated April 2, 2009 and intended for  use  only  during
the  2009  Legislative Session, is Fiscal Note No. 2009-210, prepared by
the Actuary for the New  York  State  and  Local  Employees'  Retirement
System  and  the  New  York  State  and Local Police and Fire Retirement
System.

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Senate Bill S4068

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Sponsored By

John J. Flanagan

Archive: Last Bill Status - In Senate Committee Civil Service And Pensions Committee

co-Sponsors

Andrew J. Lanza

Betty Little

Thomas P. Morahan

George Winner

2009-S4068 (ACTIVE) - Details

2009-S4068 (ACTIVE) - Summary

2009-S4068 (ACTIVE) - Sponsor Memo

2009-S4068 (ACTIVE) - Bill Text download pdf

Comments